ACLU Assails 100-Mile Border Zone as 'Constitution-Free' - Update

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ACLU Assails 100-Mile Border Zone as 'Constitution-Free' - Update

Government agents should not have the right to stop and question Americans anywhere without suspicion within 100 miles of the border, the American Civil Liberties Union said Wednesday, pointing attention to the little known power of the federal government to set up immigration checkpoints far from the nation's border lines.

The government has long been able to search people entering and exiting the country without need to say why, which is known as the border search exception of the Fourth Amendment.

After 9/11, Congress gave the Department of Homeland Security the right to use some of its powers deeper within the country, and now DHS has set up at least 33 internal checkpoints where they stop people, question them and ask them to prove citizenship, according to the ACLU.

"It is a classic example of law enforcement powers expanding far beyond their proper boundaries – in this case, literally,” said Caroline Fredrickson, who heads the ACLU's Washington, D.C., Legislative Office.

The ACLU says it has scores of complaints from citizens and wants Congress to investigate and roll back the buffer zone. According to a map the rights group released Wednesday, some 190 million citizens live within what the ACLU dubs the "Constitution-free Zone."

DHS spokesman Jason Ciliberti says the ACLU's description of the zone as "Constitution-Free" couldn't be further from the truth and that the check points follow rules set by Supreme Court rulings.

"We don't have the abilitty to just set up checkpoints willy-nilly," Ciliberti said. "The Supreme Court has determined that brief investigative encontuers do not constitute a serach or seizure."

When citizens or visa holders encounter a checkpoint, most are waived on after showing identification, but if an agent suspects the person is not lawfully in the country, the agent can detain the person until the agent's investigation is satisfied.

The government has long had the power to set up such check points, but has recently expanded the number of permanent and 'tactical' check points and deployed them in areas they hadn't before – such as near the Canadian border.

The courts, however, are not on the ACLU's side — and have regularly ruled that the Fourth Amendment's protections don't extend to the border area, airport screening or even to laptops at the border.

https://www.youtube.com/watch?v=NPOuj-WzAoAIn a video shown to reporters at a national press conference event Wednesday, retired San Diego social worker Vince Peppard complained that he and his wife were stopped at a checkpoint on a road east of San Diego on I-94, many miles after crossing back into the United States with tiles he'd bought in Mexico.

When he refused to let the Customs and Border Protection officer search his car, the officer led him to a bench, called in the contraband dog and then "ransacked" his car.

"I didn't feel like I was inside the U.S.," Peppard said, calling the search on the side of the road embarrassing. "I felt like I was in a B-movie with Nazis asking for my papers."

ACLU attorney Chris Calabrese is certain there are more people who have been negatively affected than have complained.

As an example, he cited Seattle's domestic ferries, where DHS agents ask passengers for ID to check their citizenship and use license plate readers.

"The people who live on these islands are undergoing this extra scrutiny just when they are going to get their groceries," Calabrese said.

Customs and Border Protection Cilberti's says he did not specifically look into Peppard's case, but said that refusing a search does not create probable cause for a search and that if a CBP agent searched his car, it's because their experience and training made them believe they had probable cause.

The ACLU hopes that Congress will include changes to the border zone in traveler privacy protection bills that focus on prohibiting suspicion-less searches and seizures of laptops at the border. Congress is currently out of session and would not move on any legislation until sometime in 2009 at the earliest.

UPDATE: This story was updated to include comments from Customs and Border Protection.